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KUHN v. BARNHART

March 3, 2004.

CATHERINE KUHN, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security Administration, Defendant



The opinion of the court was delivered by: JAN DUBOIS, District Judge

ORDER AND MEMORANDUM ORDER

AND NOW, this 3rd day of March, 2004, upon consideration of Plaintiff's Motion for Summary Judgment (Document No. 17, filed May 14, 2003), Defendant's Brief in Opposition to Plaintiff's Motion and in Support of Defendant's Motion for Summary Judgment (Document No. 21, filed July 8, 2003), plaintiff's Reply Brief in Support of Plaintiff's Motion for Summary Judgment (Document No. 23, filed July 29, 2003), the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa (Document No. 24, filed July 31, 2003), Plaintiff's Objections to Report and Recommendation of United States Magistrate Judge (Document No. 25, filed August 18, 2003), and Defendant's Response to Plaintiff's Objections to the Report and Recommendation of Magistrate Judge Linda K. Caracappa (Document No. 27, filed September 17, 2003), IT IS ORDERED as follows:

1. The Report and Recommendation of United States Magistrate Judge Linda K. Page 2 Caracappa dated September 17, 2003 is REJECTED;

  2. Defendant's Motion for Summary Judgment is DENIED;

  3. That part of Plaintiff's Motion for Summary Judgment in which plaintiff seeks a remand is GRANTED. The case is REMANDED to Jo Anne B. Barnhart, Commissioner of the Social Security Administration, in accordance with the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with this Order and Memorandum; and

  4. In all other respects, Plaintiff's Motion for Summary Judgment is DENIED.

  MEMORANDUM

 I. INTRODUCTION

  Plaintiff, Catherine Kuhn, brought this action, pursuant to 42 U.S.C. § 405(g), appealing the denial of her claim for supplemental security income ("SSI") benefits by defendant, the Commissioner of the Social Security Administration ("Commissioner"). Under 42 U.S.C. § 1383(c)(1)(B)(3), decisions of the Commissioner relating to SSI benefits are subject to judicial review. Maniaci v. Apfel, 27 F. Supp.2d 554 (E.D. Pa. 1998).

  Currently before the Court are the parties' motions for summary judgment. Magistrate Judge Linda K. Caracappa, in a Report and Recommendation dated July 31, 2003, recommended that defendant's Motion for Summary Judgment be granted and plaintiff's Motion for Summary Judgment be denied. For the reasons set forth below, the Court rejects the Report and Recommendation of Magistrate Judge Caracappa, grants plaintiff's Motion for Summary Judgment to the extent it seeks a remand, denies defendant's Motion for Summary Judgment, and remands the case to the Commissioner for further proceedings consistent with this Memorandum. Page 3

 II. BACKGROUND

  Plaintiff, a sixty-one year old woman, worked as a merchandiser before she slipped and fell on her back at work while working at K-Mart on March 30, 1988. (R. at 52, 55) As a result of this accident, plaintiff suffers back and neck pain and has been unable to return to work. (R. at 56, 57) She also experiences pain and numbness in both hands. (R. at 57-58)

  Plaintiff filed an application for disability insurance benefits ("DIB") under Title VII of the Social Security Act on November 4, 1992. (R. at 154) Plaintiff's application was denied initially and on reconsideration. (R. at 158-60, 164-66). Plaintiff requested an administrative hearing to review these decisions. (R. at 167-68)

  The first hearing was held before Administrative Law Judge Hazel C. Strauss ("ALJ") on June 6, 1994. (R. at 42-104) On June 9, 1995, the ALJ issued a decision finding that plaintiff was not disabled. (R. at 537-48) This decision was based, inter alia, on the ALJ's finding that plaintiff had no severe impairments. (R. at 541) Plaintiff appealed this decision and, on review, the Appeals Council vacated the ALJ's decision and remanded plaintiff's claim for a new hearing. (R. at 554-57) The Appeals Council concluded "that the evidence of record is more than sufficient to establish that the claimant had a severe impairment prior to December 31, 1993, and that further consideration under the sequential evaluation process is necessary." (R. at 556)

  The ALJ conducted a second hearing on September 17, 1998. (R. at 105-53) At this hearing, the ALJ heard testimony from plaintiff and her husband; Dr. Stanley Askin, a specialist in orthopedic surgery; and William Slaven, a vocational expert. (R. at 18) The ALJ also considered reports from, inter alia, Dr. Murray Glickman, an orthopedist; Dr. Charles Gonzales, a radiologist and neurosurgeon; Dr. Pushpa Thakarar, a rehabilitation specialist; and Dr. Vincent Baldino, Page 4 plaintiff's treating physician. (R. at 21-22)

  The ALT again denied plaintiff's claim in a decision dated March 26, 1999. (R. at 15-30) Although the ALT found that plaintiff had severe back and neck impairments, the ALT concluded that plaintiff's carpal tunnel syndrome*fn1 ("CTS") was non-severe. The ALT's assessment of plaintiff's CTS was based, inter alia, on the medical records, plaintiff's statement to Dr. Thakarar that she was independent in her daily activities, the absence of evidence of treatment for her CTS, and the fact that plaintiff never referred to pain in her hands when filing disability reports. (R. at 23, Exhibit 8)

  The ALT concluded that plaintiff's November 10, 1993 electromyogram ("EMG") and nerve conduction study that resulted in findings "consistent with bilateral CTS, moderate to severe in the right, moderate on the left," did not warrant a finding that plaintiff's CTS was a severe impairment under Social Security regulations. (R. at 23, Exhibit 20) In explaining this conclusion, the ALT relied primarily on Dr. Asian's testimony that these results were not "strong findings indicating nerve damage" and plaintiff's CTS was "easily remediable" by carpal tunnel release surgery. (R. at 23, 120, 122) The ALT also noted that plaintiff received only "conservative treatment" and "failed to seek the advice of an appropriate expert such as an orthopedist or neurologist, as someone who has such severe, prolonged pain as she described would be expected to do." (R. at 26) As further evidence that plaintiff's CTS was not as severe as she claimed, the ALT pointed to plaintiff's failure to investigate hand surgery after a 1997 Page 5 discussion with her treating physician, Dr. Baldino, in which he referred her to a hand surgeon. (R. at 27)

  The ALT also found that plaintiff's back and neck impairments were severe but not as functionally limiting as plaintiff claimed. Although plaintiff testified that she could not even perform sedentary work (R. at 20), the ALT rejected this testimony on the ground that it conflicted with the testimony of Dr. Askin, the objective medical evidence, and plaintiff's own testimony about her daily activities. Dr. Askin reviewed all the test results in plaintiff's record and concluded that these results did not support the functional limitations described by plaintiff. (R. at 134) The ALT found that the reports of two specialists consulted by plaintiff conflicted with her testimony and the testimony of her treating physician, Dr. Baldino. Dr. Glickman, one of those specialists, concluded that there "was no orthopedic process that would prevent the claimant from being able to resume her normal activities." (R. at 24, Exhibit 19) This finding was consistent with the finding of the second specialist, Dr. Gonzalez, that a CT examination of plaintiff's spine was "entirely within normal limits." (R. at 24, Exhibit 19) The ALT credited the testimony of these specialists over the opinion of plaintiff's treating physician, Dr. Baldino, because Dr. Baldino's opinion was based primarily on plaintiff's subjective complaints. (R. at 25) The ALT also found that plaintiff's subjective complaints were "not wholly credible" based on the conservative treatment she sought. (R. at 26) In addition, plaintiff's testimony concerning her daily activities, including feeding and dressing herself, cooking, sweeping, and shopping, was not consistent with the inability to do any work. (R. at 26)

  Although the ALT found that plaintiff's impairments were severe enough to prevent her from returning to work in her former occupation as a merchandiser, she found that plaintiff Page 6 retained the residual functional capacity to perform a full range of light work activity. (R. at 27) Based on this finding and plaintiff's age, education, and past work experience, the ALT concluded that plaintiff could have performed all the unskilled, light occupations listed in the Commissioner's Medical Vocational Guidelines. (R. at 27) Notwithstanding this finding, the ALT asked the vocational expert ("VE") to consider an alternative hypothetical that credited plaintiff's testimony. The ALT asked the expert to assume that plaintiff's ability to perform light work was subject to the further limitations "that she was able to walk approximately 8 blocks daily, could stand 10 to 15 minutes at a time, could sit for 20 to 30 minutes at a time, could lift and carry 10 pounds for about 12 feet, and could climb stairs slowly holding to a railing." (R. at 27) The ALT did not include in the hypothetical question asked of the VE any limitations relating to plaintiff's CTS because she determined the condition was "easily remediable and should not preclude her ability to work." (R. at 27) In response to the hypothetical question, the VE found that plaintiff could work as a ticket seller, self service gasoline cashier, and ticket taker and that these jobs were available in significant numbers in the local and national economies. (R. at 28)

  Plaintiff appealed the decision of the ALT to the Appeals Council. This time the Appeals Council denied plaintiff's request for review. As a result, the ALT's decision became the "final decision" of the Commissioner. (R. at 10-12)

  The instant action was filed on August 22, 2002. On May 14, 2003, plaintiff filed a Motion for Summary Judgment. In her Motion for Summary Judgment, plaintiff disputed the ALT's finding that her CTS was non-severe and argued that the ALT overestimated her residual functional capacity. Specifically, plaintiff claimed the ALJ ignored an explicit finding by the Appeals Council that her CTS was severe and applied an incorrect severity standard to this Page 7 condition. With regard to the ALJ's analysis of her functional capacity, plaintiff argued that the ALT ignored positive findings from a November 1993 magnetic resonance imaging ("MRI") exam, improperly rejected the opinion of her treating physician, failed to include all of her limitations in the hypothetical question to the VE, failed to properly credit the testimony of plaintiff and her husband, and neglected to consider a finding of disability by the Pennsylvania Department of Labor and Industry.

  The Court referred the matter to United States Magistrate Judge Linda K. Caracappa for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Caracappa ...


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